Moreno v. Brettkelly

Background

Moreno was representing himself in this case, which the opinion describes as his third case filed in the district. The court said his two earlier cases had been dismissed for failure to prosecute. After an initial review under 28 U.S.C. § 1915(e)(2), the court allowed Moreno to amend his complaint and directed him to the Legal Help Desk.

Moreno filed an amended complaint on April 30, 2020, and another amended complaint on May 11, 2020. The court found that the complaints failed to state a claim for which relief could be granted. On July 16, 2020, it dismissed the complaint without prejudice and gave Moreno until August 17, 2020, to file another amended complaint presenting a possible claim under 42 U.S.C. § 1983 based on alleged excessive force. The court again directed him to the Legal Help Desk.

The July 16 order was mailed and emailed to Moreno. The mailed copy was returned as undeliverable, but the Clerk later emailed another copy to his provided email address. Moreno did not file another amended complaint or otherwise respond.

Reasons for Dismissal

The court applied the factors governing dismissal for failure to prosecute or failure to comply with court orders under Federal Rule of Civil Procedure 41(b). It found that the public interest in resolving cases promptly and the court’s need to manage its docket favored dismissal because Moreno had received ample time but had not responded. The court also found that Moreno’s unreasonable delay created a presumption of prejudice to the defendants.

Although public policy generally favors decisions on the merits, the court concluded that this consideration did not outweigh Moreno’s failure to respond after multiple opportunities to state a viable claim. The court also found that less severe sanctions were inadequate because Moreno had been given time to amend and had twice been directed to seek help from the Legal Help Desk.

Disposition

The court dismissed the action for failure to prosecute and comply with court orders under Rule 41(b). It dismissed all claims other than the Section 1983 claim with prejudice. The court did not yet dismiss the Section 1983 claim. Instead, it ordered Moreno to show cause why that claim should not also be dismissed with prejudice by filing, by December 21, 2020, a motion seeking permission to file an amended complaint limited to one Section 1983 claim and attaching the proposed complaint.

The court stated that, if Moreno responded, it would decide whether the proposed claim plausibly stated a cause of action and whether to allow it to proceed or dismiss it, with or without prejudice as appropriate. If he did not respond, the court stated that it would dismiss the Section 1983 claim with prejudice for failure to state a claim and failure to comply with the court’s orders. The court expressly stated that it was not deciding the case on the merits.